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Plea-Withdrawal – Ineffective Assistance – Ch. 980-Eligibility

State v. Travis J. Guttu, 2012AP129-CR, District 3/4, 11/28/12

court of appeals decision (not recommended for publication); case activity

After entering guilty pleas to multiple counts, Guttu unsuccessfully sought presentencing plea-withdrawal. After sentencing, he sought to withdraw the pleas on different grounds, more particularly: counsel was ineffective for failing to assert Guttu’s lack of knowledge that his plea to one of the counts (sexual assault) subjected him to potential SVP commitment under ch. 980. Under current precedent, potential commitment is a “collateral consequence” of a plea, therefore lack of such knowledge is not grounds for postconviction plea-withdrawal, State v. Myers, 199 Wis. 2d 391, 544 N.W.2d 609 (Ct. App. 1996), but is a basis for presentencing plea-withdrawal, State v. Nelson, 2005 WI App 113, 282 Wis. 2d 502, 701 N.W.2d 32. Thus, Nelson provided a ground for Guttu’s initial motion: was counsel ineffective for not pursuing it? The court assumes without deciding in the first instance that the Myers collateral-consequence rule doesn’t preclude consideration of what is at least nominally a postconviction attack on the plea (¶18); and assumes further that counsel’s failure to raise the issue was a function of deficient performance (¶24). The question thus devolves to prejudice, which because of the context requires a somewhat refined analysis. Prejudice tests the impact of deficient performance on the result of the proceeding, ¶27, citing State v. Harbor, 2011 WI 28, ¶72, 333 Wis. 2d 53, 797 N.W.2d 828. The relevant proceeding here is the presentencing motion to withdraw plea, so it comes down to whether there’s a reasonable probability that but for failure to raise the Nelson-type issue, Guttu would have prevailed on plea-withdrawal, ¶27. Alas for him, he loses on the altogether prosaic ground of credibility: the trial court found as a matter of fact that Guttu wasn’t credible in claiming he didn’t know the offense made him 980-eligible, and therefore he can’t show prejudice, ¶36.

Guttu separately argues postconviction plea-withdrawal as to a different offense (aggravated battery), on the ground the record didn’t establish his understanding of the elements. Although the court deems various errors in the plea form to be “unsettling” (¶44), the record as a whole shows by clear and convincing evidence that Guttu did understand the nature of this charge, ¶¶45-51.

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